The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.24254 of 2023 Jalarpur Gram Panchayat, Cuttack. ....... Petitioner State of Orissa & others ....... Opposite Parties -Versus- For Petitioner : Mr. S. K. Dalai, Advocate For Opposite Parties : Mr. J. Katikia, AGA ................... CORAM: JUSTICE SANJAY KUMAR MISHRA _____________________________________________________________ Date of Hearing and Judgment: 23.11.2023 _____________________________________________________________ S.K. MISHRA, J. 1. This Writ Petition has been preferred by Jalarpur Gram Panchayat, represented through its Sarpanch, with the following prayers:- “i) Appropriate direction shall not be given to opposite parties more especially opposite party no 2 to 4 allow the preset petitioner to carry on distribution of PDS system through Gram Panchyat in kind consonance with the constitutional provisions forthwith to secure ends of justice. Page 1 of 12 ii) Action of the opposite parties more especially opposite party no 2 to 4 shall not be declared as illegal, arbitrary, and unconstitutional so also contrary to the settled principle of Law.” malafide 2.
Legal Reasoning
To substantiate the prayer made in the Writ Petition, Mr. Dalai, learned Counsel for the Petitioner draws attention of this Court to Article 243(G) read with serial no.28 under 11th Schedule of the Constitution of India and Section 44 (1)(z)(3) of the Odisha Grama Panchyat Act, 1964, which deals with the powers, duties and functions of Gram Panchayats which includes Public Distribution System and submits, in terms of the said legal provisions so also Clause 4 of the Odisha Public Distribution System (Control) Order, 2016, which deals with the Appointment of Dealers and Grant of License for dealing with the PDS commodities, the present Petitioner being a Gram Panchyat, is having a preferential right over Women Self Help Groups, Cooperative Societies and other Self Help Groups for dealing with the PDS commodities. 3. Mr. Dalai further submits, contrary to the provisions under the Odisha Gram Panchyat Act, 1964 so also Odisha Public Distribution System (Control) Order, 2016 the present Opposite Party Nos.2 to 4 have assigned the said work of carrying on distribution of PDS commodities to a private person i.e. the present Opposite Party No.5, who is not eligible Page 2 of 12 to be engaged to do so as per the Order, 2016 and guidelines in the said regard. 4. For ready reference, the said provisions under Section 44 (1)(z)(3), of Odisha Grampanchyat Act, 1964 so also Sub-Clause (3) in Clause-4 of the Odisha Public Distribution System (Control) Order, 2016 are extracted below:- “CHAPTER-VI “Powers, duties and functions of Panchyats Grama 44. Obligatory functions- [(1) Subject to the provisions of this Act and the rules made thereunder, it shall be the duty of a Grama Panchayat, within the limits of its funds to undertakes, control and administer and be responsible for the following matters in respect of the Grama, namely: Xxxxx (z-3) Public distribution system;” “4. License- Appointment of Dealers and Grant of (3) Preference for appointment and for grant of license as dealer shall be given to Gram Panchyats or Urban Local Body, as the case may be, followed by Women Self Groups, Cooperative Societies, and other Self Help Groups in that order.” 5. To substantiate his submission, Mr. Dalai hands up the copy of judgment dated 13.01.2017 passed in W.P.(C) No.13759 of 2016 (Gambharimunda Grama Panchyat v. State of Orissa & Ors.) so also order dated 19.10.2023 passed by this Court in W.P.(C) No.34834 of 2023 and submits, the prayer made in the Writ Petition is squarely Page 3 of 12 covered by the said judgment and order passed by this Court, relaying on the said Judgment. 6.
Decision
Opposing the prayer made in the Writ Petition, a detailed Counter has been filed by the State/Opposite Party Nos.2 to 4. Paragraphs-6 to 8 and 16 of the said Counter Affidavit, which specifically deal with the allegations made in the Writ Petition and the issue involved therein, are extracted below:- “6.That, in reply to the averments made in Para- I of the Writ Petition, it is humbly submitted that, the allegation made by the petitioner regarding depriving the Gram Panchayat to discharge their obligatory functions of handling of PDS as laid down Section 44(1) (z-3) for is denied. In fact Jallarpur G.P. was functioning as a retailer since 2009 to 31 March 2022. As per the License condition of OPDS Control Order 2016, Clause No-6 sub clause-(3), the license will apply for renewal of License before 15 days of expiring of License period i.e. 31.03.2022. The said G.P. has not been applied for renewal of License till 31.03.2022. The PEO of the Jalarpur G.P. has also refused to take the charge of PDS vide letter dtd.31.03.2022. The License of G.P. has not been renewed for the year 2022-2023 as they have not applied for renewal before appropriate authorities as per Rules/ Orders governing the field of such renewal of license. Fir smooth distribution of PDS at the G.P., the ration cards of the said PDS retail point were tagged to the nearest private retailer Sri Debendra Kumar Das of Sahanajpur retail centre of Jalrapur G.P. as an alternate arrangement, so that the ration cardholders would receive their entitlement PDS commodities in time. 7. That, in reply to the averments made in Para-2 and Para-3 of the Writ petition, this deponent has no comments to offer. 8. That, in reply to the averments made in Para- 4 of the Writ Petition, it is humbly submitted that, as Page 4 of 12 per the provision of the Clause 6(2) of the Odisha Public Distribution System (Control) Order, 2016 a retailer License bearing no.LRC071021220555 valid till 31 March 2022 was issued to the PEO, Jalarpur GP to deal the PDS commodities. A copy of the License is annexed herewith as Annexure-A/4. of In spite several persuasions as communicated vide letter No.1005 dated.04.04.2022 of the Block Development Officer, Niali, the PEO refused to take the charge of PDS and failed to renew the license within the validity period. The copies of the Letter dt.31.03.2022 & Letter No.1005 dt.04.04.2022 are annexed herewith as Annexure-B/4 and Annexure-C/4. to Hence, Block Development Officer, Niali reported the Sub-Collector-cum-Licensing Authority, Sadar, Cuttack vide Letter No.1339 dt.07.04.2022 to tag the PDS allocation to the nearest retailer to avoid dislocation of PDS. A copy of is annexed herewith as Annexure-D/4. the Letter No.1339 t.07.04.2022 Accordingly, the Sub-Collector & Licensing Authority vide Office Order No.2926 dt.08.04.2022 has tagged the Retail Centre to the nearest retailer Debendra Kumar Das until further order to avoid dislocation of PDS. A copy of the Office Order No.2926 dt.08.04.2022 is annexed herewith as Annexure-E/4. That it is further humbly submitted that, the Sub Collector, Sadar, Cuttack i.e. the Licensing Authority in his Letter No.6758 dt.23.07.2022 again instructed the Licensee, the petitioner to renew the License. A copy of the Letter No.6758 dt.26.07.2022 is annexed herewith as Annexure-F/4. In response to the letter of the Licensing Authority & Letter of B.D.O., the PEO refused to deal with PDS commodities in her Letter dt.12.09.2022. A copy of the Letter dt.12.09.2022 is annexed herewith as Annexure-G/4. Hence, sufficient scope was given to the Gram Panchayat for renewal of License for the year 2022-23 to deal PDS commodities as per the provision. Page 5 of 12 16. That in reply to the averments made in Para-15 of the Writ Petition, it is humbly submitted that, the provision of clause-4(3) of the Odisha P.D.S. (Control) Order, 2016, envisages that, “Preference for appointment and grant of license as dealer shall be given to Gram Panchyats or Urban Local Body, as the case may be, followed by Women Self Help Groups, Cooperative Societies, and other Self Help Groups in that Order. Provided that the State Government may alter or modify the order of preference by an order in writing. Accordingly, in exercise of the powers conferred by the provision to Sub-Clause-(3) of Clause-4 of the said Order, the State Government modified the order of preference for appointment and grant of license to dealers vide Order No.14362/Dt.21.09.2019. At present, preference for appointment and for grant of license as dealer has been given to Women Self-Help Group. A copy of the Order No.14362/Dt.21.09.2019 annexed herewith as Annexure-J/4. is Similarly, the duration of two years to replace private dealers with institutional dealers under the provision of Clause-4, in Sub-Clause-(6) has been extended to eight years vide Notification No.4117 dt.03.03.2023 of the Government. A copy of the Notification No.4117 dt.03.03.2023 is annexed herewith as Annexure-K/4.” (Emphasis supplied) 7. Mr. Katikia, learned AGA for the State-Opposite Parties, draws attention of this Court to the circular dated 12.05.2016, as at Annexure-H/4 to the Counter Affidavit and submits, in view of the Clause-1 of the said circular, the Sarpanch being the head of GPLAC, he/she should not be personally involved in PDS-operation, though he/she has power of supervision, monitoring and vigilance for smooth operation Page 6 of 12 of PDS in the Gram Panchyat. The said Clause-1 of the circular dated 12.05.2016 is extracted below for ready reference: “Issue of FPS License to Gram Panchayat (GPs) As enshrined in Para 3(1) of the OPDS (Control) Order, 2016, the Gram Panchyat running Fair Price shop needs to be issued with license by the Licensing Authority specified for the purpose. Since the Gram Panchayat is an institutional body all documentations are required to be executed by it’s Executive Head. Therefore, the license for running Fair Price Shop under Public Distribution System shall be issued in favour of the Executive Officer of the said Gram Panchyat. This instructions was issued vide letter No.10322 dt.12.05.2008. The same is being reiterated now. As Sarpanch is head of the GPLAC, he/she should not be personally involved in PDS operation. But she/he has power of supervision monitoring & vigilance for smooth operation of PDS in the Gram Panchayat.” (Emphasis supplied) 8. He further submits, in terms of the order dated 21.09.2019 of the Government of Odisha, Food Supplies and Consumer Welfare Department as at Annexure-J/4, now preference for appointment and for grant of license as dealer shall be given to Women Self Help Group (WSHG) followed by the Gram Panchyats or Urban Local Bodies, as the case may be, Cooperative Societies and other Self Help Groups in that order. 9. The relevant portion of the said order dated 21.09.2019 as at Annexure J/4, is extracted below: Page 7 of 12 “No.FSCW-MISC-0003-2017/14362/dated, Bhubaneswar 21.09.19 In exercise of the powers conferred by the proviso to sub-clause (3) of clause 4 of the Odisha Public distribution System (Control) Order, 2016, the State government do hereby modify the order of preference for appointment and for grant of license to dealers as follows:- Preference for appointment and for grant of license as dealer shall be given to women self Help Groups followed by Gram Panchayats or Urban Local Bodies as the case may be, Cooperative Societies, and other Self Help Groups in that order. It shall come into force on the date of its publication in the Odisha Gazette.” (Emphasis supplied) 10. Learned State Counsel further submits, vide the said order dated 21.09.2019, the provision in Clause-4 of the Odisha Public Distribution System (Control) Order, 2016 has been modified in terms of power conferred in the proviso to Sub-Clause (3) of Clause 4 of Odisha Public Distribution System (Control) Order, 2016. 11. Mr. Katikia draws attention of this Court to the letter dated 31.03.2022 of the Executive Officer and Ex-Executive Officer of Jalarpur G.P., addressed to the B.D.O., Niali, so also letter dated 12.09.2022 of one Arati Murmu, the Executive Officer, Jalarpur G.P., addressed to the B.D.O., Niali and submits, despite repeated request made to the PEO, Jalarpur for renewal of PDS license within a stipulated period, the PEO failed to do so. Page 8 of 12 12. That apart, Arati Murmu, Executive Officer of the said G.P., vide her letter dated 12.09.2022 wrote to the B.D.O., Niali that as per the order of B.D.O. dated 29.08.2022 to take charge of Jalarpur Grampanchyat on 05.09.2022, she being a female employee, avoided to take such responsibility of maintaining PDS on the plea that there is a huge problem. 13. Contents of the said communication dated 12.09.2022 are extracted below:- To, The Block Development Officer, Niali Sub:- (Regarding PDS of Jallarpur G.P.) Sir, With due respect and I would like to inform you that as per yur order no.2794 dated,29.08.22 taken charge of Jallarpur G.P. on 5.09.2022. There is a huge problem PDS. As I am a female employee will not be able to maintain P.D.S. This is for your kind information Niali Block Yours Faithfully Date-12.09.2022 Arati Murmu Executive Officer Jallarpur G.P. (Emphasis supplied) 14. Mr. Katikia submits, in view of the said admitted fact as to non- renewal of PDS license to be issued in favour of the Executive Officer in terms of circular dated 12.05.2016 and unwillingness of the Executive Page 9 of 12 Officer namely, Arati Murmu vide letter dated 12.09.2022 to take such responsibility, the Licensing Authority had no other way out than to pass the order dated 08.04.2022 tagged the Retail Center to the nearest retailer namely, Mr. Debendra Kumar Das (0710P063), Sahanajpur, Jalarpur and there is no illegality or infirmity in the said action or decision of the State Authority. 15. Mr. Katikia further submits, there is no illegality in tagging the Retail Center to Mr. Debendra Kumar Das, who is the nearest dealer in view of the Notification dated 03.03.2023 as at Annexure-K/4. He further submits, duration of two years to replace the private dealers with institutional dealers has been extended from time to time and as per aforesaid Notification, the same has been extended to eight years. The contents of the said Notification dated 03.03.2023 are extracted below for ready reference. “GOVERNMENT OF ODISHA FOOD SUPPLIES AND CONSUMER WELFARE DEPARTMENT ***** No.FSCW-FSI-MISC-0003-2017/4117/dated, the 03.03.2023 In exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 (10 of 1955) read with clause 9 of the targeted Public Distribution System (Control) Order, 2015, the State Government do hereby make the following Order further to amend the Odisha Public Distribution System (Control) Order, 2016, namely:- 1. Short title and commencement:- (1) This Order may be called the Odisha Public Distribution System (Control) Order, Amendment Order, 2023. Page 10 of 12 2. It shall come into force on the date of its publication in the Odisha Gazette. 3. In the Odisha Public Distribution System (Control) Order, 2016, in clause 4, sub-clause (6), for the words “seven years” the words “eight years” shall be substituted. By order of the Governor Sd/- Principal Secretary to Govt.” (Emphasis supplied) 16. In response to the said submission made by Mr. Katikia, Mr. Dalai, learned Counsel for the Petitioner submits, Arati Murmu is no more continuing as the Executive Officer of Jalarpur Gram Panchyat. At present one Mr. Suresh Dehuri is working as the Executive Officer of the said Gram Panchyat. Mr. Dalai draws attention of this Court to the Resolution of the Gram Panchayat dated 26.06.2023, as at Annexure-3, and submits, in the said meeting, vide proposal no.1, it was resolved to approach the Sub-Collector (License Authority) to renew the PDS License in favour of the Gram Panchyat and restore the previous practice of distribution of the PDS commodities through the said Gram Panchyat. Copy of the said Resolution was forwarded to the B.D.O. and Sub- Collector vide Memo No.149 and 150 respectively, both dated 26.06.2023, and the said Authorities are yet to act in terms of the said resolution. Page 11 of 12 17. Accordingly, Mr. Dalai submits, direction be given to the Sub- Collector, Cuttack (O.P. No. 3) to deal with the said resolution so also representation of the Petitioner dated 17.08.2022 and do the needful in accordance with law within a time frame. 18. In view of the above, the Writ Petition is disposed of at the stage of admission. The Sub-Collector, Cuttack (O.P. No. 3) is directed to deal with the issue, as raised by the Petitioner Gram Panchyat and dispose of the same taking into consideration the said Resolution dated 26.06.2023 so also representation dated 17.08.2022 of the Petitioner-SHG within a period of four weeks from the date of production of the certified copy of this judgment. 19. Urgent certified copy be granted on proper application as per rules. ….……………… S.K. Mishra, J. Orissa High Court, Cuttack. Dated, 23rd November, 2023/ Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: JR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2023 11:42:51 Page 12 of 12